Not only has Minsky registered the mark (for which a notice of allowance recently issued) but he has also allegedly been speaking with people who use the terms “SLART,” “slart,” and “SLart” to refer to art in Second Life in order to accuse them of trademark infringement and threaten them with legal action. Minsky is using the SLART trademark in-world and in connection with his magazine — a publication concerning virtual art, particularly art in Second Life. His trademark registration covers the publication of various types of works, art exhibitions, and educational programs concerning art.

Easy as Pie — The Basics of Trademarks

First, some basic background on trademark law. In a nutshell, trademarks exist to protect consumers from confusion. A trademark is granted so that a consumer may identify the source of the goods or services he is using, and can distinguish those goods or services from those of the maker’s competitors. As a result, trademark infringement occurs when someone uses another person’s trademark (or something confusingly similar) in commerce, in connection with an offering of goods or services, in a way that is likely to cause confusion as to the source of the goods or services being offered.

Only certain classes of words are entitled to trademark protection. The strongest marks are those which are arbitrary or fanciful — Apple as an arbitrary name for computers, or Kodak as a fanciful term for cameras, for example. The weakest marks are those that are descriptive of their goods — All Bran for cereal, or Quality Inn for hotels. These descriptive trademarks are only entitled to full protection once they have acquired secondary meaning — i.e., consumers hear the mark and associate it with one particular maker of that product. Generic terms are never entitled to trademark protection (e.g., you can’t trademark the word CHAIR or DESK for a chair or a desk).

From Art to Tarts — The Federal Registration of SLART

Based on the spectrum of trademark protection above, I can imagine what most people are thinking — “wait a minute, the term ‘SLart’ is generic! Or at the very least, descriptive, so how did it get registered?” Bloggers have claimed that the word SLart has been in common use to describe art in Second Life for quite some time. If this is the case, then most likely the term is generic, and should not be available to trademark. However, a search on Google for the term “SLart” does not actually reveal many generic uses of the word. There are many references on the web to Minsky’s SLArt publication, as well as a few uses by other Second Life users, but no great slew of common uses of the word to point to in support of a claim that the word is generic.

A much stronger case can be made that the term is descriptive. Given the subject matter of his publication, the term SLART obviously is derived from the common Second Life naming convention of appending “SL” to the beginning of a common word. Here, the result is a word meaning “Second Life Art.” And indeed, the main subject of Minsky’s publication appears to be art in Second Life; its tagline is “a critical review and journal of the arts in Second Life.”

The Lanham Act prohibits registration of a trademark that, “when used on or in connection with the goods of the applicant is merely descriptive … of them” Lanham Act, 15 U.S.C. § 1052(e)(1). Court decisions have further refined this rule to state that the mark does not need to describe all of the purposes or features of the goods or services. Rather, it is sufficient that the mark only describes one attribute of the goods in order to be found merely descriptive. In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982).

I think it should be clear that a term meaning “Second Life Art” when used on a publication that is at least in part about art in Second Life, should be considered descriptive. So how, one might ask, did this mark get approved? After reviewing the prosecution history for the mark, it looks like the trademark examiner simply dropped the ball on this one.

When Minsky filed his application for SLART, the trademark examiner assigned to the case actually did issue a refusal based on descriptiveness. Minsky responded that his mark was not descriptive because common use of the term “SL Art” included a space. He also argued that the term SLART has other meanings, cited from urbandictionary.com, and largely involving combinations of the terms “slut, “tart,” and “fart,” and finally, that his publications are not restricted to Second Life, but address art from any virtual world.

Let’s examine each of Minsky’s arguments in turn.

First, the fact that common use of “SL Art” may contain a space does not change the fact that the title of his work has the meaning “Second Life Art,” which is descriptive of its content. In fact, Minsky separates the “SL” and “ART” elements of the mark on his web site by using different colors for each. He also has captioned his print volume of SLART, “The Second Life Art World.”

Second, other meanings of the word are unimportant, unless he is trying to argue that he named his magazine after “a fart emitted by a slut,” “a cross between a slut and a tart,” or other such colorful, and equally unrelated terms (taken from the Urban Dictionary and cited in Minsky’s Office Action Response at the USPTO). Considering the fact that his magazine states that the subject matter is art in Second Life, these definitions seem an implausible source of the title.

Third, and finally, with respect to the fact that his magazine covers other subjects, this is irrelevant, because the title still describes one attribute of his goods and services. Unfortunately, the examiner is not required to respond if he or she accepts the applicant’s arguments, and so we may never know which of these equally unpersuasive arguments won the day.

Commentary or Cupcakes — What Constitutes Infringing Use?

Right or wrong, the application for SLART was approved, and Minsky now holds a registered trademark for the word. But what does this mean, exactly? Ownership of a trademark gives the owner the right to prevent others from using that trademark (or confusingly similar marks) in commerce, in connection with goods and services, in a way that would cause a likelihood of confusion as to the source of the goods or services.

Before one condemns Minsky too quickly for his attempted enforcement of his trademark rights, it is important to realize that trademark rights only exist if the owner enforces them. If a trademark owner does not enforce the mark against infringing uses, the mark can become generic, and the owner will lose his rights (“aspirin” and “escalator” used to be trademarked terms, before they became generic). A trademark owner can also lose the ability to enforce his rights if he allows too many infringing uses to go unchecked. Therefore, if Minsky wants to keep the mark that he has registered, he has an obligation to enforce his rights against infringing uses.

From reading some background material on this matter, it appears as though Minsky has spoken to a number of people about ceasing their use of the term “SLart” and obtaining a license for the term from him. Uses that have been condemned by Minsky include the naming of an art exhibition “SLart at the Cannery,” use of the term in peoples’ profiles, and use of the word in tags on objects or pictures.

Let’s address the latter use first—use of the term “SLart” in profiles and tags. Chances are, these uses are not in commerce, and not used in connection with an offering of goods or services. As a result, these uses are most likely descriptive, and not trademark use. If someone has written in their profile “my hobbies include SLart,” or has labeled a picture in their personal photo album “SLart show,” then Minsky will have a hard time proving that this use constitutes infringing trademark use. These people are not using the term in connection with goods and services, they are more akin to personal commentary. The owners of “SLart at the Cannery,” however, are probably not as safe. In that situation, the term “SLart” is being used to promote a service—namely, an art show, and a service does not necessarily have to charge admission in order to be used in commerce.

Another point that is important to note is that any use of the term “SLart” that began before Minsky filed his trademark application, or claimed first use of the mark, is not infringing. Under U.S. law, the first person to use a trademark has priority. Therefore, even if a use would otherwise be infringing, if it began prior to the time that Minsky had any right to the term, it would not infringe his trademark rights. He cannot claim rights going back to a time before he used or applied for the trademark. In this case, he has claimed a first use date of December 9, 2006.

Finally, Minsky can only claim rights to the trademark on the goods that he has claimed in his trademark application, or goods that are so related to those that confusion as to the source of the goods is likely to result. Therefore, while using SLART on a magazine, or an art exhibit would likely be considered infringing, using the same mark on a cupcake or a pair of shoes would probably not (note that owners of truly famous marks, such as Pepsi or Nike, can prevent use of their marks on unrelated goods under the law of trademark dilution).

Claiming a Piece of the Cake — A SLart User’s Options

For those who have heard from Minsky about an allegedly infringing use of his mark, or for those who are afraid that they might in the future, the question on their minds is probably, “what can I do?” In terms of specifics, you should seek the advice of a trademark attorney regarding your particular situation. In general, however, there is a choice to be made between our two most primal instincts — fight or flight, and both options have pros and cons.

Obviously, the easiest course of action may be to comply with his demands, whether reasonable or not. This way, you avoid any chance that he might sue you or take action against your account with Linden Lab. If you take this route, however, you may be giving up rights that you actually have, as well as strengthening his mark. This is the safer path, the one that’s probably the least hassle, but not necessarily the most satisfying one.

The other option is to fight. This could be as simple as refusing to cease use of the mark. In this case, it puts the burden on him to take action. If the alleged infringer refuses to stop using the mark, Minsky has to either take legal action, or allow the use to continue. Filing and pursuing a complaint in federal court is expensive and time-consuming. Of course, this is no assurance that he won’t do it. And defending against a federal complaint is also expensive and time-consuming. Probably the more pressing concern for those who are using the term inside Second Life, is that he will complain to Linden Lab that his trademark is being infringed, and ask that they suspend or delete the accounts of the alleged infringers. Although many feel Linden Lab’s enforcement of its trademark policy has been hit and miss, this is likely a real concern for those who are using the term within Second Life.

For those who are more proactive, waiting to be sued is not the only option. A person who would be injured by the enforcement of a registered trademark may petition the USPTO to cancel the mark, if they can prove that it was registered improperly — in this case, because the mark is descriptive and therefore should not have been registered. Although this route is less expensive than a full blown federal lawsuit, it still can be very expensive and time-consuming, as it basically amounts to a mini-lawsuit.

Another possibility is that Linden Lab might have some interest in objecting to Minsky’s registration of the SLART trademark. After all, the mark includes an abbreviation of “Second Life” — a registered trademark of Linden Lab. The Second Life trademark is also used profusely throughout the SLART websites and magazine, even appearing in the websites and magazine’s subtitle. Although Linden Lab has allowed the use of the term in-world and on websites in the past, any use must be consistent with Linden Lab’s trademark policy and, when requested and agreed to, license. Notably, the sample license prohibits use “in a manner that infringes, derogates, dilutes, or impairs the rights of Linden Research in the its marks.” It also requires that licensees agree to the following:

You acknowledge that Linden Research is the owner of all of the Linden Research Marks and warrant that you will not take any action which is inconsistent with Linden Research’s ownership thereof.

Compared to most Second Life users, Linden Lab is, obviously, more likely to have the resources to fully prosecute a legal action in this matter.

A Bitter Dessert — Conclusions

In the end, this is a bad situation for people in the Second Life art community. Although the SLART trademark probably shouldn’t have been registered in the first place, it has been, and now people are faced with a choice of either losing the use of the word, or opening themselves up to potential lawsuits and account suspensions. Of course, as a trademark lawyer and video game enthusiast, I would be very interested to see this issue go to court. But keeping me entertained probably shouldn’t be your primary concern if faced with this issue. If you are, and you have the resources, I would strongly suggest that you consult with a trademark attorney about your rights and options.

Finally, as a lawyer, I must emphasize that point: the comments above are my opinion only, and not meant to be construed as legal advice. If you have been approached by or think you have a claim against Richard Minsky regarding his trademarking of the term “SLART,” or any other related matter, please consult with a trademark attorney regarding the specifics of your situation.

Thayer Preece is a San Francisco Bay Area attorney specializing in trademark and copyright law, particularly as applied to the internet. Thayer is also an avid gamer and World of Warcraft addict. In her limited spare time, she also bakes copious amounts of cupcakes and posts pictures of them on her blog, ilikecake.org.

I am excited to introduce Thayer Preece, VB’s newest guest writer. Thayer and I worked together in SF for a while, and I’ve been trying to get her to write for the site for months. This trademark issue provided the perfect opportunity, and Thayer says she’ll consider doing periodic guest spots for VB going forward. Please join me in welcoming her.

In regard to the substance, I’ve got nothing to add to Thayer’s thoughtful comments. Just a “good luck” to everyone dealing with the fallout of this, and a suggestion that virtual world residents start monitoring the trademark situation so that appropriate objections can be filed while applications are in process. Perhaps I’ll try to talk Thayer into an in-world discussion of the nuts and bolts of monitoring and objecting to pending applications one of these days.

From what I’ve read above, seems like the best grounds for cancellation would be either:

(1) Section 2(d) of the Act, 15 U.S.C. § 1052(d): That defendant’s mark so resembles … a mark … previously used in the United States by another and not abandoned, as to be likely, when used on or in connection with the goods or services of the defendant, to cause confusion, or to cause mistake, or to deceive.

(2) The grounds specified in Section 2(e) of the Act, 15 U.S.C. § 1052(e); for example, that defendant’s mark, when used on or in connection with the goods or services of the defendant, is merely descriptive…

Note that a petition for cancellation requires a $300 fee. It really wouldn’t be too tough to put together provided that someone could come up with evidence for one of the above grounds for cancellation. There’s plenty of IP attorneys flying around in SL that I wouldn’t be surprised if a talented artist couldn’t get one to trade some pro bono representation for a nice piece of art to hang on their office wall.

On a side note, it’s generally not wise to anger your potential consumers (artists) by registering a commonly used mark and then trying to enforce it against them. Since Minsky was savvy enough to pursue registration, he may also have the business mind to acknowledge that and avoid a potential boycott.

Thank you Thayer Preece for an excellent analysis of this issue. I feel this whole issue has become distorted. I am not trying to control freedom of speech or restrain trade. I did NOT “demand payment” from individuals who used the term slart. A full presentation of my position on the Slart Trademark discussion is at http://slartblog.blogspot.com/

I would like to point out that there have been fewer than a half dozen cease and desist notices sent, and the only ones directed to individuals about their use of the trademark slart were when the mark was used commercially.

Yesterday there were over 75 (I stopped counting) results searching the SL classifieds for SL art and only 7 for slart, and those were related to SLART™ either directly as my locations or groups or they were related to articles on the SLART™ website. If an artist wants to sell their work, sl art is the term to use.

Note that a petition for cancellation requires a $300 fee. It really wouldn’t be too tough to put together provided that someone could come up with evidence for one of the above grounds for cancellation. There’s plenty of IP attorneys flying around in SL that I wouldn’t be surprised if a talented artist couldn’t get one to trade some pro bono representation for a nice piece of art to hang on their office wall.

is the case, I am game.

I have 250 USD in my SL balance sitting there doing nothing – so we’re only 50 USD short – and I’m sure I know a lot of SL artists that we’d be willing to give out a piece of art for this. But probably the works would not be officially approved ‘SLART TM’ though by Mr. Minsky, I assume.

@9 (Richard): I read your post, and I offer that when you registered the trademark you had the best of intentions and did not consider the repercussions. You may be completely new to trademarks, I don’t know.

I do expect that you’re a pretty well thought out business person, and registering SLArt (which, again, is your registered trademark – so don’t think I’m infringing…) does give you an advantage in search engines, so this indicates that you may be well informed on SEO. So you’re far from an idiot in my book – just so we have that established.

But here’s the rub. Alienating the community and blaming it on blogs that convey what is being said by the community in your post… I’d say that you’ve made a mistake.

I’ve been one of the people who has suggested everyone to switch over to SL@rt, which in my mind would have been what I would have trademarked if I wanted a distinctive trademark. Its pretty froody, really, but now a few of us have used it and will probably continue to use it. So I think you lost out on a distinctive trademark and pushed yourself into the boiling water of community – really a mistake, I think.

But I think that there is a graceful way out of this for you. Look to what Coca Cola did in Second Life. You could be looked upon as a good guy in the long term. In the short term, you’re going to have mud slung at you because it does seem pretty myopic to trademark the whole thing.

And as far as the trademark cancellation – you know, I’ll toss $10 in the ring if you don’t do the right thing. If a lawyer will handle it, the pot now stands at $10. All we need are 29 more people with $10.

Do we really want to go that route? Do you?

Lets be reasonable. I don’t really want to spend $10, you don’t really want this trademark reviewed and you certainly don’t want the court of public opinion subverting your entrepeneurial efforts.

In response to the first post from Dandelion Kimban, regarding use of the SECOND LIFE term on users’ blogs (in trademark law, trademarked terms are often referred to in all caps to help indicate that they are trademarks, not just ordinary words) -

The most accurate answer is, it depends on the specific use. There would be some uses that fall under the umbrella of “nominative fair use,” which basically boils down to using the trademark to refer to the trademarked item–here, using SECOND LIFE to refer to the Second Life program. As you can see in my article above, I make liberal use of the trademark, but always to refer to Second Life, not to my own site or services.

I think where users get into a greyer area is when they use the term in their domain name or the title of their site or organization. In my opinion, I think this could technically constitute infringement, as the blogger is using the SECOND LIFE trademark to identify their own site or service. However, as far as I can tell, Linden Lab seems content to allow a lot of this use in terms of naming things that are associated with the game. Looking at their trademark policy, which is linked in the article, they offer a (free, I think) license to people who want to use the SECOND LIFE mark for their own non-profit ventures. You can read more on the terms of the agreement there. I also note that it needs to be signed by Linden Lab to be in effect.

Thayer, this was a fantastic article. I’ve been trying to get a handle on trademark issues in SL for a while, and this was the clearest, most thorough exploration I’ve found. I hope you’ll return to this space soon with more excellent writing!

@12 (Taran): Thank you for the suggestions. I revised the statement at http://slartblog.blogspot.com and eliminated the references to the bloggers. The issue has become interesting and at the very least will make artists more aware of trademark law. It certainly is helping me to learn about it, and more. You are correct that this is my first trademark, but in error that I am a “well thought out business person.” I am primarily an artist, a craftsman and an art educator. My academic background was in Economics, so I am better at observing business than conducting it ;>}. I presented a paper on ”The Art World Market of Second Life” at SLCC last August, and there have been over 6000 downloads. It addresses many issues facing the artist and art buyer in SL. It’s free at http://slartmagazine.com/ArtWorld_Market.pdf

@23: Yeah, believe it or not I actually have some trademark experience in the context of community and am pretty well versed on it. This is why LinuxGazette.com now redirects to LinuxJournal.com, as one example.

The issue has become interesting and at the very least will make artists more aware of trademark law.

If I was not on the other side of the opinion spectrum, I’d admire you for how you spin everything you do, as if it’s supposed to be something positive. ‘I’m scr*wing the artists over by trademarking SLart but at least this will make them aware of trademark law.’

As you’re thanking Taran for his great suggestions, did you actually consider doing the good thing, and letting the – not rightfully owned – trademark go?!

And I think I forgot to say my ‘thank you’s’ too:

Taran, thank you for the 10 USD you’re willing to contribute. We’re getting somewhere. Now, if needed to convince a lawyer, I can do tasteful nude to hang at your desk too? :d

Miss Preece, I can’t thank you enough. As I clearly admit I’m not good at the legal stuff, I had a feeling there was something wrong with this trademark and it should never had been handed out. You do not realise how much the ‘rightfully upset’ means to me! If you ever get tired of the legal sp33k over here at Virtually Blind, or the adsense revenue at Taran’s place, feel free to write for vintfalken.com: you get to vent about unjust trademarks, free skins & open source, textures, WindLight, SLex, second life art, and all the other ‘kewl’ Second Life stuff. I see the legal stuff as just an – interesting, but obnotious – side effect. ;)

As a full time RL artist in SL since May 2006, I have never heard the word Slart ™ used before Minsky starting using it. If only any of you artists or Minsky bashers read up on this issue or what Minsky does for a living, you’d see that this trademark will only benefit the arts community in SL. He’s not threatening anyone, he’s just following standard procedures and nothing more. Using this isusue it to benefit blogs of artists who are not even obligated to the trademarking laws of the US is pretty sad. Why not use it as an opportunity to educate on the issue more (which I think still can happen) and less stupid name calling and false accusations.

Vint, I’m calling you out here. Yes you have a right to express yourself and your opinion. But when you slander and distort the facts, you are making a mess. Show some integrity!

I want to thank everybody for continuing to keep discussion on this controversial topic focused on ideas. So far, it has been a very good discussion and I’m glad to see some of the key people in this dispute weighing in. I’d really like it to be able to continue with the same courtesy it has so far, in spite of that fact that many posters do, obviously, have serious disagreements. Thanks.

@27 – Filthy, I respect your opinion. I respect that you believe someone owning the rights to a word that has very common uses is something that is acceptable. I honestly do.

But I do not agree with you.

I’m not bashing Minsky – far from it, I have a lot of respect for him. However, this is also a community issue. There is a reason that I only threw $10 in the pot, and I will explain why to you so that you understand.

If Vint had not already put $250 in, it would have taken 30 people putting $10 a piece in to come up with $30. In essence, it would be 30 people who would be willing to put a relatively small amount of money into a community pool to defend what is being called a community interest. At my last counting, there are only two people in the pool – which certainly does lend credibility to your claims.

The way I see things is pretty pragmatic. There is a time for talk, and there is a time for action. If the community does not rally around this, then there really isn’t a case of worth here. That you haven’t put $10 probably says more than your post, actually.

But here’s my rub. I honestly think that the USPTO screwed up here, and there is a principle involved that is larger than this case. When the USPTO screws up, it costs people money – sometimes even when they do things right, by Law, it costs people money (a separate subject altogether). It wasn’t too long ago that Microsoft accidentally patented a fruit (an apple, no less). In this case, something can be done – but it depends on how many people actually think it should be done. Vint has the spirit of many people to stand up for this, and I respect that (and I think that you should as well) – but standing up is not much by itself when there is a community involved.

It is rather amusing that I can throw up an OpenGL library – free download – and get textures without permission in Second Life without even a Copybot, and people – artists and others – are concerned about that. People still have those annoying spamalicious anti-Copybot things going, I’ve seen them, but those are easily beaten. The point here is that even though most of the efforts are pointless, people are trying to protect their property.

Myself? I view the word ‘SLArt’ as a commons. I view it as a way to tag things on del.icio.us, which does not suffer spaces well. I look at it as something that the community could use and do a lot with. Whether or not the community finds value in that is really the question at this point.

If you say that you will never wish to use the SLArt phrase to describe your work outside of Minsky’s trademark, then so be it – it is your decision, and you will live with it. So will everyone else who comes after you. It is your right to give up your right to use that word.

If the trademark owner is supposed to protect the trademark, they are also supposed to protect from misspelled variations of trademark being registered, aka:
slartmagasine.com or slartmagazin.com or slartmagasine.com

(lawyers: eh ? am I correct or wrong here ?)

There’s a “free service” from networksolutions.com (go to website, click “protection measures”. 4 days long, and fully free. (Benjamin – on this topic I guess you can write another entry about the irrelevancy of such a ‘protection measure’:)

If my assumptions are correct – observing the kaboom of “domain protection service done by a big company vs. the trademark law” would be quite an amusement!

Benjamin, roger that. Although I’m sick and tired of Richard Minsky and the fanclub saying I’m slandering and that the nature of my claim is false, as your article proves it is not incorrect, that a mistake probably truly was made. He had a chance to respond to me a few days ago, he chose to do not so, not by IM and not on my blog. Now he suddenly drops from the skie saying ‘oh poor me, don’t you see what good stuff I do and how you’re wasting my time’. *sighs*

Filthy, where did I slander and distort the facts? You may check my blog on this:

- he did send out a cease and desist to rezzable, with the threat that if a license were not purchased, and there was not ‘ceased and desisted’ either, he should take further action
- he waves the same thing at cyanide, forcing her to change the wiki’s name
- he did contact Ganymedes on the profile pick & search entry

As for the SLass(hole), I already replied to this on my blog, but as Mr. Minsky prefers to not read and react there and only points to it as ‘a blogger’, I’ll copy paste here:

Richard Minsky trademarked the ‘SLart’ word, so I write about Richard Minsky, not Artworld Market. It is also Richard Minsky who send out the cease and desist letter to Rezzable. As for slurring and insulting, I only called Minsky a SLass. Following Minsky’s reasoning that SLart is not a descriptive term for Second Life Art, as there is no separation between the SL and the ART, SLass is not a descriptive term for a Second Life Ass. Hence I did not call Minsky an ass. The real definition of SLass lays close to what – Minsky in his trademark application claims – is the real definition of Slart.

@Taran: We’re over 300 USD now. Taran added 20 to 50 euro’s on my blogpost (and giving the exchange rate) and Mr. Martin said he’d make up the difference (40 USD at that time). Ganymedes offered to help if he could do something non-financial (but as we all know time is precious too). If it takes me redrawing 240 USD and a list of 30 persons for you to see that it is a community issue, I’d gladly set that up. But I do think finding the pro bono officer is a more tricky thing then proving that evidence of community involvement, especially as you look at the ‘echo’ this issue found on the blogs & Flickr.

As a final note on this, Minsky always says ‘oh, but law is forcing me to enforce my trademark, I don’t want to be the bad guy and besides, all artists can learn from this’. Well, law never forced Mr. Minsky to register his trademark in the first place. And even now he has, he can still choose to let it go.

@ Dalien: Sure. The same goes for my blog and probably Mr. Duranske’s too. The fact is though, that I’m happy it’s not my blog people are clicking through on under ‘took something that did not belong to him, but to the SLart community’.

When a small group uses agitprop to gain support through misinformation and inflammatory rhetoric it will arouse temporary support. I was not referring to Ann Wuyts (Vint’s) blog in the original statement (she reacted as if), but to one who wrote:

“A book artist named Richard Minsky has trademarked the word “SLArt” for his own uses and had begun contacting anyone who has used the term in any way.”

and

“Minsky has offered to “license” the term to anyone using it for a small fee.”

These are ignorant falsehoods meant to influence people who don’t know the facts. I don’t know whether that blogger picked up the story from Vint, or from the other Belgian blog that began this canard.

Vint correctly points out three commercial infringements of the trademark that I addressed, and though her language is more colorful than mine, does get it across @33 that two projects were offered licenses, which they declined, and one individual was given a c&d notice.

Richard, there is a reason why I’m not boasting the *insert RL name*’ out loud on the Second Life stuff, although I’m know to once in a while sign with both Vint and the RL name on e-mails: in the city a live, there is a fellow lady with exact the same name. She’s a wedding photographer amongst others, and we’ve been mixed up already to much in the past (it all started with library books lend out to the wrong *put RL name here*, etc, traumatic, really) and I don’t want people Googling her to find my second life endeavours, it would only confuse those people. So, please do as all the others do, and refrain from mentioning that name. You clearly come out as ‘Richard Minsky’ on your SL projects, I do not go by my RL name in SL, although I do not hide the human from them who wish to know. But please, do respect this choice I’ve made!

So, we’ve come to the point where you acknowledge that the information I gave was correct. And yet, people do support my idea on this. So I guess, even with correct information and normal rhetoric, people still think freeing the SLart from being oppressed trademarked is a worthy cause. ;)

And if you refer to ‘a blogger’, ‘a blog’, ‘another blog’, ‘blogs’ … etc, don’t you think it’s logical we loose track of which one you’re actually talking about?

Vint (and some others) want:
Minsky to stop calling them liars and slanderers.
The wrongfully acquired trademark on SLart being handed back to the SLart community, preferable by Mr. Misnky.
If this is not going to happen, find a way to get the trademark claim over SLart annulled.

Minsky wants:
To keep his trademark on SLart
Us all to cease and desist.
Us all to recognize that by registering the SLart trademark although he has no – even legal – right to it, he’s doing the SLart community in SL a big favour

Hmm. Not much ‘getting closer’? Although I do think the ‘Free SLart from Trademark Oppression’ front is getting somewhere. ;)

Well, I also very much appreciate the article. I must admit however that after reading it I found myself asking: Where is the suggestiveness discussion?

The ‘basics of trademarks’ section of the article just skips over suggestiveness entirely going from fanciful to descriptive and generic and abruptly ends that portion of the discussion. I suppose understanding trademarks could be as ‘easy as pie’ when you omit relevant portions of the law from the discussion.

Whatever happened to :

If there is any doubt in drawing the line of demarcation between a suggestive mark and a merely descriptive mark, such doubt is resolved in the applicant’s favor. In re Atavio, 25 USPQ 1361 (TTAB 1992).

There are many marks that do fall into a grey area between descriptiveness and suggestiveness. However, I left a discussion of this issue out of my article because in my opinion it is irrelevant to this particular matter.

Obviously everyone is entitled to their own opinion, but it is my view that when a mark literally means “Second Life Art” (a fact which the Applicant did not contest in his office action response) and it is used on a publication about Second Life art, there is no doubt that the mark is descriptive, and therefore there is no doubt to be resolved in the Applicant’s favor.

[...] in Second Life especially on Flickr, it created a community backlash. There has been some great and insightful commentary over the dispute which boils down to the fact that Linden Lab owns the copyright and trademark to [...]

I’m not sure why people are so upset about the trademarking of the SLART name. Has anyone even bothered to read the description of services? According to the USPTO, the trademark covers “Multimedia publishing of books, magazines, journals, software, games, music, and electronic publications; On-line publication of art,” etc.

The basics of trademarks section of the article just skips over suggestiveness entirely going from fanciful to descriptive and generic and abruptly ends that portion of the discussion. I suppose understanding trademarks could be as ‘easy as pie’ when you omit relevant portions of the law from the discussion.

[...] in Second Life especially on Flickr, it created a community backlash. There has been some great and insightful commentary over the dispute which boils down to the fact that Linden Lab owns the copyright and trademark to [...]

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About Virtually Blind

From early 2007 to late 2008, Virtually Blind covered legal news, issues, and events that impact virtual worlds, video games, and the 3D internet. The site is no longer updated, though it remains online as a research resource.

Posts and comments on VB were and are not offered as legal advice, and are not confidential attorney-client communication. Posts and comments reflect only the opinion of the author, and do not necessarily represent the opinion of VB's editor, other contributors, sponsors, or any author's employer.